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Opinion Contributor

A Supreme Court for the 21st century

Nobody would suggest that we need to watch the Supreme Court deliberate in public. But the public deserves a far better understanding of what is influencing the justices — particularly when the appearance is great that they are substituting political or policy preferences for the law.

The country has recently viewed politically tinged spectacles such as Justice Antonin Scalia angrily denouncing from the bench the contents of President Barack Obama’s immigration enforcement announcement as well as parroting during the health care oral argument the flawed tea party warning that we are all headed toward a brave new world of mandatory broccoli purchases. In Bush v. Gore, conservative justices who had routinely voted against equal protection plaintiffs (except for white challengers to affirmative action), suddenly found a plaintiff they could love in George W. Bush.

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To top it off, we now have a Supreme Court that reflects the symmetry of our partisan world — in which every Republican in Congress is more conservative than every Democrat. All the conservatives on the court were appointed by Republicans and all the moderates were appointed by Democrats. A few academics may still debate whether the court acts politically. But whether the court is a political institution or simply an institution that decides political issues, reform to strengthen the public’s trust is long overdue.

Reform must begin with the court’s adoption of the code of conduct that governs all other federal judges.. Adherence to this code would prevent justices from hobnobbing with big money players, like the Koch brothers, at political gatherings and from lending the prestige of their offices to ideologically charged fundraising. Such conduct undermines faith in the court — particularly as it issues decisions that empower those same big money players.

We also need to ensure existing ethics restrictions are enforced. For example, we saw Justice Clarence Thomas fail to report his wife’s income from conservative sources for more than a decade. With no consequences.

The court’s recusal process must also be made transparent and fair. Now, each justice makes secret recusal decisions without a requirement of input or review from any other source. No person should be the exclusive judge of his or her own ability to appear impartial. Written explanations should be required from justices in recusal matters, so both the bar and general public can understand the rationale.

Transparency in the courtroom means the introduction of TV cameras. It is absurd that the public cannot watch the justices at work in their “public” courtroom. The nation had an enormous interest in the health care arguments, for example, but was not able to watch them and could hear them only through delayed audio broadcast.

In the past, justices have expressed concern that courtroom participants would play to the cameras. That prospect is remote. Any advocate who would jeopardize his or her client’s interests by doing so could, and should, be disciplined.

More likely, cameras would have a civilizing influence on the justices. The knowledge that the public is watching might temper some of their remarkably political commentary and intemperate questioning that now occurs at arguments.

Readers' Comments (13)

Ridiculous. Just one more attack on the one remaining leg of our government with any ethical basis underneath it. The press, generally liberal, has been beating up on the Court for 2 or 3 months now, as a result of everyone's belief that the mandate, and maybe the entire bill, would be struck down -- and that it would be primarily Roberts' fault. Other authors on this site have pummeled the court, complaining that it had become 'politicized', and was no longer capable of the role for which it was created.

Now that the surprising judgement was delivered, there are cries from the right to impeach Roberts, to investigate Kagan, and in general, to try to further attack and belittle the court.

I hate the healthcare bill - despise it. I think, historically, it will be seen as one of the worst things our government has ever, or could have ever done to us. But I totally respect our system of government, including the finality and respectability of decisions brought down by our Supreme Court.

Can we repeal Obamacare? I'm dubious, but I hope so. Can we defeat Obama in November so that he doesn't continue to wreak destruction on the economy and on our society. But in the end, we always play the game fair, and we don't whine and cry and criticize the refs -- who, in this case are the highest court in the land.

I'm not sure about televising SCOTUS. Some of the arguments make sense, but then again they made sense when we decided to televise Congress. And just how has that turned out? Has it gotten less political? Less influenced by money? More restrained? More transparent?

My opinion is that televising Congress hasn't done squat except make Americans more contemptuous of a institution that has an all time low approval rating.

It might've worked if there was actual journalism taking place. But rather than breaking news and analyzing it, we get incompetence (see today's CNN/Fox debacles) and political punditry that parades as journalism. We get supposed fair and balanced news, when in fact the news isn't news but simply the opinions of the political extremes. Basically we get a reality show mentality that heavily relies on the likes of Limbaugh and Hannity and Schultz and Maddow.

I'm not eager to just give the stupid media more fodder to work their "transparency magic".

This should teach a brother a lesson....it don't matter what you do....you'll always be a Neo-con in Politico's book. The biggest case in 60-70 years easily.... and Donkey still never gets enough oral.

The problem with this ruling is that it was made by a person who used intelligence to craft an answer that would not force the court to overturn a law passed by the other two branches. I don't even think he believes what he wrote. The decision was a very political one, I think most people don't understand how Roberts came to this decision and why.

The first thing he did was strike down any future talk of mandates. He did so for a political reason. He understood that if the Dems tried to pass Obamacare as a massive tax with a rebate for those who buy a private product it would never have gotten the votes needed even though it's legal. So he made sure to take the idea of the commerce clause away as a vehicle to get around the word tax.

Secondly he went so far out of his way to turn this into a tax. Obama is on record of saying it's not a tax and previous bills with a tax in them and they were rejected. He turned it into a tax for a simple reason. The GOP talked about repealing Obamacare using reconciliation (50+1) but it was questionable whether or not the whole law or just the part passed by reconciliation by the dems could be repealed with 50+1 votes. By turning the mandate into a tax it's fair game as soon as the GOP gets full control of Washington.

Roberts calculated that if the outrage was high enough then Mitt would be elected, the GOP would keep the House, and they would win more than enough seats needed to kill Obamacare. I believe he is right and immigration and the other background noise will fade so we will have two subjects, the economy and Obamacare. Roberts knew neither are issues Obama can win.

Make no mistake about it. The issue was (and should of) going to be about how to fix health care in this country. That's an issue the Dems can win. Roberts turned it into a debate about taxing the middle class and forcing people to buy a private product knowing that over 60% of America hates the idea.

Was the Constitutional Law Professor, Barack H. Obama just ignorant and uninformed, when he declared that his Obamacare was not a TAX on "the 99 Percent" and the rest of the population ... some time time ago ? Uh ?

Or ... was he just being devious and untruthful, in his lifelong desire, to turn the USA into the NEW, United Soviet States of America ?

Either way, we are screwed if we accept this new "status quo," without a whimper !

You can take a pig and put a tutu, ballet shoes, fix it's hair and put lipstick on it .. AND IT WOULD STILL BE A PIG !!!

A tax pig ... that is !!!

Can't wait until we hear the next flourishing, teleprompter guided, Executive order issuing ... "Bush - blaming speech," from our comander in chief.

I am sure the pig will do a beautiful pirouette ... once the Comander in Chief, makes his concluding statements !

"Throwing your pearls before the swine," ... may achieve a new respectability in our new Soviet Republic of America !

"It,s okay Medediev, I'll talk to you after the election!" ... Yeah ! We never heard you say that !!!! Right ?

Our founding fathers created the Supreme Court to balance the power of the president and congress. They are not elected, so they don't have to court the public. They cannot lose their jobs, so they don't have to worry about angering the president. They have to be approved by Congress, so both parties have to agree that whatever their political leaning, they have proved time and again that they will be fair. When elected officials talk about putting restraints on the Supreme Court I get nervous. Why not just throw out the constitution and declare the United States a dictatorship? Leave the Supreme Court alone. I would argue that anyone who wants to change the way the checks and balances of the Constitution are written should be impeached.

The "tax" will be paid by those who can afford insurance, but refuse to buy it. We end up picking up the bill on them. Now they will have to pay instead of walking into the ER and we get stuck with the bill. Not getting insurance puts the costs on those who do have insurance.

I don't care to buy or vote for ANYTHING ... and then read about it later! Sorry Nancy !

People walking into ERs without any insurance should become accountable and face the same consequences for their behavior, just like the rest of us would have to do in our own lives. Everthing has a price, including life.

When did the American people become the NANNIES OF THE WORLD and the keepers of all of our brother's IRRESPONSIBILITIES ... Uh ?

You drink, you smoke, you live an unhealthy lifestyle and then you die, Mr. Bond !

People are wondering who leaked the stuff on Robert's so called indecsion, I say it is because Obamacare needs attention away from what the actual ruling does and because opinions like this one: that the Supreme court is out of date and therefore we have to change it to be more like the 9th circuit court and while we are at it the constitution too, or at least the Bill of Rights.

Funny how a man that claims to be a constitutional lawyer trys so hard to sway public opinion that Supreme court is making law from the bench.

I think Roberts in his writings was giving the people a lesson in civics and spelling out just how the ruling was not makinglaws from the bench.